Definition and Significance of the Reorganization of the Federal Territory
Die Reorganization of the Federal Territory refers, within German constitutional law, to all significant changes in the territorial organization of the Federal Republic of Germany, particularly the creation, dissolution, merger, or modification of the boundaries of federal states. The legal basis for this is, in particular, the Basic Law for the Federal Republic of Germany (GG). The reorganization since the Basic Law came into force reflects the federal principle and the democratic participation of the population at the state level.
Constitutional Foundations
Article 29 of the Basic Law
The key provision for reorganization of the federal territory is found in Article 29 GG. This article lays out in detail the procedures and requirements for changes in the existence and configuration of the states.
Content and Purpose
Article 29 GG aims for a “reorganization of the federal territory” if “the existing division into states does not meet requirements”—for example, with regard to efficient administrative structures or historically developed connections. The aim is a functional, democratic, and efficient structure of the states.
Procedure under Article 29 GG
- Legislative Proposal and Federal Law:
The reorganization is carried out by federal law, which requires the consent of the affected states or a referendum in the relevant areas.
- Hearing:
The proposal must offer the affected states and regions the opportunity to comment.
- Referendum:
If the affected states refuse, a binding referendum is held among the affected population.
- Finality and Protection of Existing Rights:
Changes after 1949 are specially protected—a reversal is only possible under further requirements.
Further Constitutional Provisions
Article 118 GG
For the specific relationship between Baden and Württemberg ist Article 118 GG is applicable, which provided a simplified procedure for the states of Baden, Württemberg-Baden, and Württemberg-Hohenzollern.
Article 118a GG
Article 118a GG enables the states of Berlin and Brandenburg to merge by means of a joint state treaty and without a referendum (for example, the planned but not implemented merger to “Berlin-Brandenburg”).
Article 29a GG
Article 29a GG contains provisions allowing, for example, Berlin to be merged with Brandenburg and/or other states, provided the affected states agree.
Process and Forms of Reorganization
Initiation of Reorganization
A reorganization can be initiated by
- resolution of the Bundestag,
- application by a state government, or
- by initiative of the population itself (via a citizens’ petition with the appropriate number of signatures)
take place.
Legislative Process
The law governing the reorganization must comply with the procedure set out in Article 29 GG, particularly the participation rights of the states, the hearing of the affected population, and, if necessary, provision for a referendum.
Forms of Reorganization
Typical types of reorganization include:
- Merger of several states
- Creation of a new state
- Transfers of territory between existing states
- Separation of parts of a state
Role of the Bundestag and Bundesrat
The Bundestag enacts the reorganization law, and the Bundesrat must approve the law. If the referendum is rejected, the law does not come into effect.
Practical Implementation and Examples
Historical Reorganizations
The largest state territorial reorganization was the creation of Baden-Württemberg in 1952 pursuant to Article 118 GG. The reorganization of states in East Germany after German reunification in 1990 was also a form of reorganization, but based on the Unification Treaty rather than Article 29 GG.
Failed Proposals
The planned federal state of Berlin-Brandenburg was rejected by referendum in 1996, and thus the reorganization did not take place.
Legal Control Levels and Protective Mechanisms
Legal Protection
Measures for the reorganization of the federal territory can be brought before the Federal Constitutional Court (abstract judicial review). The admissibility and compatibility with the Basic Law is decided by the Federal Constitutional Court.
Protection of Minorities
Article 29 GG provides special protection for minorities by requiring the consent of the respective local population for territorial changes. This ensures that changes are substantially democratically legitimized.
Effects of Reorganization
State and Municipal Levels
A reorganization affects not only state boundaries, but also has far-reaching consequences for administrative structures, political representation, judicial organization, and responsibilities in areas such as education, police, or municipal law.
Financial Consequences
Reorganizations usually bring new rules on fiscal equalization and the distribution of responsibilities and administrative duties.
Literature and Further Regulations
- Basic Law for the Federal Republic of Germany (Art. 29, 118, 118a GG)
- Unification Treaty (Treaty between the Federal Republic of Germany and the German Democratic Republic for the Establishment of German Unity, BGBl. II 1990, p. 885)
- Federal Constitutional Court Act (BVerfGG)
- Commentaries on Constitutional Law and Administrative Law
Conclusion
The reorganization of the federal territory is a complex process that is clearly regulated by constitutional law. It is subject to strict procedural and material requirements to respect both federal structures and the democratic will. The procedural steps and participation rights of the states and the population prevent unintended or unilateral changes and ensure that territorial amendments in the federal structure occur only after thorough review and broad consensus.
Frequently Asked Questions
Which constitutional foundations govern the reorganization of the federal territory?
The reorganization of the federal territory is governed by Articles 29, 118, and 118a of the Basic Law (GG). Article 29 GG is the key provision, laying down the procedure, requirements, and objectives under which the whole federal territory can be reorganized. These include, in particular, the referendum process and participation rights of the states involved. Article 118 GG provides a special legal basis for Baden-Württemberg, since the reorganization took place there as early as 1952. Article 118a GG further regulates the possibility of merging Berlin and Brandenburg by state treaty and referendum. In addition to these constitutional principles, ordinary federal laws and state constitutions must also be considered regarding procedural design. The inclusion in the Basic Law ensures that territorial changes of significant scope are always carried out according to democratic and legal principles, and that the integrity as well as the participatory rights of the involved states and their populations are preserved.
What role does the population play in a territorial reorganization?
A central element of reorganization is the participation of the population, whose will must be obtained through referendums and plebiscites. Under Article 29 GG, a referendum is required within the framework of a reorganization, provided it is demanded by a certain number of affected citizens or a state parliament. The specific modalities of voting, especially quorums and the wording of the question, are regulated in the law on the reorganization of the federal territory. These rules reflect the principle that major territorial changes should not be made over the heads of the people, but rather with the comprehensive participation of those directly affected. Referendums have direct binding legal effect on the legislature.
How does the process of reorganization work according to Article 29 GG?
The process typically begins with an application for reorganization, which can be initiated either by the Bundestag, a state government, or by a certain number of eligible voters. The Bundestag then examines the admissibility and may, where appropriate, recommend that the Federal President call a referendum. The law specifies which areas are affected by the planned reorganization and governs the conduct of the referendums in the relevant areas. Following a positive referendum, a federal law that requires explicit approval must be enacted to make the reorganization legally effective. The Bundesrat, as the representative body of the states, must be involved, since the territorial integrity of the states is affected. At every stage, the process requires careful consideration of interests as well as respect for the federal principles of the Basic Law.
What constitutional review options are available in connection with a reorganization?
The Federal Constitutional Court is competent for all disputes in connection with reorganizations that relate to the interpretation or application of the Basic Law (Art. 93 GG). In particular, individual or affected states and constitutional bodies involved in the process may appeal to the court through institutional litigation or abstract judicial review if they consider their rights infringed. In the past, constitutional complaints and institutional proceedings have been brought in connection with reorganization referenda. The Federal Constitutional Court carefully examines whether the procedure has been properly conducted, whether the participation rights of the states and the population were sufficiently guaranteed, and whether the substantive requirements for reorganization—such as aiming for efficient states—have been met.
What standards does the Basic Law set for when reorganization is permissible?
The Basic Law states in Art. 29 para. 1 GG that a reorganization must aim to create states of such size and capacity that they can ensure efficient administration and better address the needs of the population. In addition, historical, cultural, and economic connections as well as regional affinities must be taken into account. Mere considerations of expediency are not sufficient; rather, interference with established structures must be justified and compatible with the democratic order and federal principles. These standards are strictly reviewed both during the legislative process and in court.
What are the implications of a reorganization for state institutions and existing laws?
A reorganization requires far-reaching changes within the government organization and the application of laws. It is generally necessary to enact adaptation laws that address personnel transfers, asset arrangements, changes of jurisdiction, and legal application. The legal status of civil servants, judges, and other employees is regulated by transfer provisions so that their rights are preserved. In addition, existing state laws and administrative regulations must be adjusted or repealed to reflect the new boundaries and jurisdictions. Special transitional arrangements are often made to ensure smooth administration and continuous delivery of justice during the transition. The federal government oversees implementation to minimize conflicts and legal uncertainty.
Can minor boundary changes between states also be made without the major reorganization procedure?
Yes, Art. 29 para. 7 GG permits minor territorial adjustments by agreement of the affected states with the approval of the Bundestag. These are, however, only minor changes, such as the adjustment of municipal boundaries for administrative reasons. Such changes only require a simpler procedure without a nationwide referendum, but democratic participation rights at the state level must still be observed, and the change must not significantly impair either the functioning or the identity of the states. Even with minor changes, it must be ensured that the affected local authorities and citizens are adequately involved.
